President Barack Obama is garnering good marks so far on his pledge to bring “an unprecedented level of openness” to the executive branch.
But as the government prepares to spend billions of taxpayer dollars stimulating the economy and cleaning up the banking mess, transparency advocates say it’s critical the administration takes a stronger stance to protect federal whistle-blowers who report instances of fraud, waste, or abuse.
During the campaign, candidate Obama made government transparency a top priority, and he was a strong supporter of the Whistleblower Protection Act.
He made his transparency pledge on his first full day in office. He also reversed the Bush administration’s restrictive policy on the Freedom of Information Act (FOIA), ordering all federal agencies and departments to adopt a presumption in favor of public disclosure.
But several recent instances, including a signing statement that could be interpreted to diminish whistle-blower protections for executive branch employees, have raised concerns about the president’s ability to stick to his pledge.
Transparency advocates contend that bureaucracies are notoriously resistant to change, and national security questions, when publicly disclosed, can create thorny legal thickets. Some believe those Washington realities have already prompted the administration to send mixed signals on transparency.
“They’ve taken some good first steps on FOIA and trying to make things more transparent in terms of how money is spent, but they still have a long way to go, particularly with respect to whistle-blower protections,” says David Colapinto, general counsel of the National Whistleblowers Center in Washington, DC.
Transparency advocates recognize the administration has more than a full agenda as it works to jump-start the economy and clean up the banking mess.
But they also argue that with the hundreds of billions of taxpayers’ dollars at stake it’s even more critical that federal employees feel comfortable going to Congress or to the public when they come upon instances of fraud, waste, or abuse.
Many lawmakers agree that current federal whistle-blower protections are inadequate.
The House version of the $410 billion stimulus package approved earlier this month included a bill that would shore up whistle-blower protections. Among other things, it would have provided federal whistle-blowers access to jury trials. The bill was taken out of the final version of the stimulus package, reportedly because of concerns from some members of the Senate Intelligence Committee, who wanted more clarification on how classified information would be dealt with.
But the final stimulus bill that Obama signed last week did include some language that is designed to protect federal whistle-blowers. It forbids the administration to use the appropriation to pay the salaries of any employee or official “who interferes with or prohibits certain communications between Federal employees and Members of Congress.”
In a signing statement, which is used to signal a president’s disagreement with a bill he signs, Obama stated that “I do not interpret this provision to detract from my authority to direct the heads of executive departments to supervise, control, and correct employees’ communications [which are] unlawful or would reveal information that is properly privileged or otherwise confidential.”
That prompted Senator Charles Grassley (R) of Iowa to accuse the administration of breaking its campaign pledge to protect whistle-blowers. It also raised concern among many transparency advocates like Tod Devine, of the Government Accountability Project in Washington, who contend that it “hints at restoring the Bush secrecy policies.”
But Mr. Devine says the problem with the signing statement is that it’s so vague and broadly worded that it can be interpreted in two ways: As a simple restating of the president’s authority or as an outright gag rule on federal employees who speak to Congress without their boss’ permission.
“It could be interpreted at either end of the transparency perspective because it was so vague and terse,” says Devine.
The White House counters that the congressional language itself was vague and terse, which necessitated the signing statement.
“Read literally, it would prevent the Executive Branch from taking steps to prevent or address employee communications with Congress even where such communications are unlawful or ... legitimately classified,” White House spokesman Thomas Vietor wrote in an e-mail. “The president’s signing statement does not purport to control or limit legitimate whistle-blowing activities. Nor is it intended to break new ground on this issue.”
Transparency advocates contend that could be further clarified if the administration would reiterate the Obama campaign’s support for the Whistleblower Protection Act.
But despite their urging, they haven’t been able to get a direct answer, advocates contend. “It’s been like talking to a wall,” says Devine.
Mr. Vietor at the White House responded that he didn’t have “any additional [information] on this.”
Still, many transparency advocates say they’re optimistic about the administration. One reason is that Obama has just appointed Elaine Kaplan as the new counsel of the Office of Personnel Management. During the Clinton Administration she was essentially in charge of protecting whistle-blowers, and she won kudos for her work.